Each month, the U.S. Citizenship and Immigration Service (USCIS) releases updates on the availability of various visa categories and required filing dates. As such, the visa bulletin informs potential applicants when to submit their I-485, Adjustment of Status Application. The below explains the cause of visa backlogs, how to use the Visa Bulletin Charts, and what to expect for the rest of the fiscal year 2021 (through September 2021).

The Visa Backlogs
Congress allocates a limited number of employment-based immigrant visas per year. The Immigration and Nationality Act sets a global level of 140,000 for annual employment-based visas. However, if previous years’ allocations are not granted in full, those visas may be available for future years. Each country can receive no more than 7% of the total annual family-based and employment-based preference limits. The amount per country is set individually, up to the maximum amount.

Immigrant visas for immediate relatives of U.S. citizens are unlimited, so they are always available. Included in the definition of ‘immediate relatives’ are spouses, children, parents, and widows/widowers of those with immigration visas as long as the request is filed during the visa holders’ lifetime or within two years of death.

In preference categories where there are more qualified applicants than available visas, the category is defined as oversubscribed or “backlogged.” As such, the U.S. Department of State creates a “priority date cut off” for backlogged categories. This is illustrated by the second preference employment-based category (EB-2) of Indian and Chinese nationals. Another example is the third preference employment-based category (EB-3). The backlog occurs at the final stage of the permanent residence process.

The backlog comes into effect at the final state of an applicant filing for adjustment of status. An employer first must obtain a certified Application for Permanent Employment Certification (PERM), verifying they made efforts to recruit current citizens prior to looking to the international labor market, among other requirements. Next, the employer must file an I-140 Petition on behalf of an employee/applicant, providing proof they are able to pay the wages offered. Then, after both of these steps are completed, the applicant must wait for an available visa.

The priority date for the applicant is set based on when the employer completes their required filings. For the priority date to “lock in,” the Department of Labor must certify the PERM and USCIS must approve the employer’s I-140 Immigrant Petition. Once the priority date is locked in, the applicant needs to monitor the Visa Bulletin Charts to determine when they are eligible to file for Adjustment of Status. The applicant can’t file the I-485 application or immigrant visa until his priority date becomes current.

How To Determine When Your Priority Date Is Current
The Department of State publishes current immigrant visa availability through the monthly Visa Bulletin. The Visa Bulletin indicates when the statutorily limited visas discussed above are available for issuance based on their priority date. The Department of States publishes two different charts per visa preference category. The charts are:

  • Application Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing Applications (earliest dates when applicants may be able to apply).

The USCIS determines when an applicant’s priority date is open for filing the Adjustment of Status (I-485 application). The USCIS utilizes the Dates for Filing Applications chart to file an adjustment of status application with USCIS. Otherwise, USCIS instructs the applicants to use the Application Final Action Dates chart to determine when to file an adjustment of status application. Department of State and USCIS coordinate each month and shortly after the Department of State releases the Visa Bulletin Chart, USCIS posts the relevant chart to be used for each month.

Prediction for FY 2021
Every month Charlie Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides insight and prediction related to the visa bulletin. For April 2021, Mr. Oppenheim provided the below predictions for the rest of the fiscal year (FY) 2021, which runs through September 30, 2021.

As a result of the global pandemic, the usage of family-based immigrant visas remains low. This is a result of over 95% of family-based immigrant visas being processed by consular posts overseas. These overseas consular posts continue to offer limited if any visa appointments as consequence of the pandemic.

Any unused family-based visas will be added to employment-based visa preference categories. Therefore, the potential available employment-based visas for the next fiscal year will be at least 275,000 according to Mr. Oppenheim. This will have a positive impact on the employment-based visa available for India and China.

Mr. Oppenheim has the following prediction of Employment-Based Preference Categories:

  • Employment-Based, First Preference (EB1)
    • EB1 will remain current for the rest of the fiscal year 2021 (FY21).
  • Employment-Based, Second and Third Preferences (EB2 & EB3)
    • There will be rapid movement in the EB2 and EB3 categories for China and India, beginning in May 2021. EB2 and EB3 cutoff dates also may advance significantly in FY2022. More will be known about FY2022 later in the year. Mr. Oppenheim does not yet have figures on the number of EB2-to-EB3 “downgrade” cases, so he is not able to predict how that will impact visa availability.

Summary
ILBSG continues to monitor and report predictions and movements related to the monthly visa bulletin. If you have any questions regarding your priority date or any immigration related issues, contact our team at ILBSG. We put our expertise and experience to work for you to ensure you get the right advice for your specific circumstance.

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